THE PLACE OF EVICTION AGREEMENTS IN RENTAL LAW

In this study, we will examine the concept of eviction undertakings, which have become increasingly common in the field of rental law recently, as well as their elements and scope of application.

Lease agreements, regulated in Articles 299 et seq. of the Turkish Code of Obligations, are a type of contract frequently encountered in daily life, where the lessor agrees to allow the lessee to use or benefit from something, and the lessee, in return, undertakes to pay the agreed rent. Lease agreements are divided into three types: ordinary leases, residential and commercial leases, and agricultural leases. Since disputes in practice mostly relate to residential and commercial leases, this study will focus on disagreements in this area.

In residential and commercial lease agreements, contracts can be terminated by notice or through legal action. However, the grounds for terminating a contract through legal action are subject to the Numerus Clausus principle (limited number) and, according to Article 354 of the Turkish Code of Obligations, cannot be arbitrarily expanded to the detriment of the tenant.

As explicitly stipulated by law, lease agreements can be terminated for reasons originating from either the landlord or the tenant. A written undertaking to vacate is an example of a lease agreement being terminated due to reasons attributable to the tenant. Because undertakings to vacate are not subject to strict conditions like other termination reasons, it is a method frequently used by landlords in practice.

Eviction Undertaking: Definition and Legal Nature

A written eviction undertaking, as regulated in Article 352/1 of the Turkish Code of Obligations, is a document subject to written form in which the tenant undertakes to vacate the leased property on a specified date. It should be added that eviction undertakings can only be drawn up for residential and commercial property leases; otherwise, this arrangement will be invalid.

The nature of a written eviction undertaking is a matter of debate in legal doctrine, but the generally accepted view is that it is an ancillary agreement to a lease agreement.

Elements of a Written Eviction Undertaking

The validity of a written eviction undertaking is subject to the presence of certain elements.

• The eviction undertaking must be in writing.

Although the Turkish Code of Obligations (TBK) does not prescribe any specific form for lease agreements, it emphasizes that the undertaking to vacate must be explicitly in writing (TBK Article 352/1). Therefore, written form is a formal requirement for the validity of the undertaking to vacate, and eviction cannot be demanded based on a verbal undertaking. In other words, the tenant's handwritten signature at the bottom of the undertaking text is sufficient as a simple written form. Whether the text is handwritten or a computer printout is not a crucial matter.

It should be noted immediately that, in terms of the tenant denying the signature, it is important that the eviction undertaking is drawn up or certified by a notary public. Furthermore, the undertaking must be signed by the tenant themselves; otherwise, it will be invalid and have no legal effect.

Whether the consent of the other spouse, required for the termination of a lease agreement in a family home, is also required for a written undertaking to vacate the premises is a matter of debate and differing opinions. To avoid disagreements in practice, it would be appropriate to adopt the view that, if the leased property qualifies as a family home, a written undertaking to vacate by the tenant spouse is subject to the explicit consent of the other spouse.

Another factor that could render the termination invalid is the failure of all tenants to make a commitment, with the exception of cases where only one tenant is authorized when the tenant side consists of multiple individuals. If all tenants do not participate in the commitment, the commitment in question will not be valid.

If the tenant is a legal entity, the written eviction undertaking will only be valid if it is given by the authorized representative.

• The evacuation date must be specified.

For an eviction undertaking to be valid, it must include the eviction date. Specifying the eviction date in day, month, and year format is not mandatory. The undertaking could be stated as June 5, 2023, or 'two years after the contract date', or even as the Eid al-Adha of 2022. While the validity of an undertaking specifying only the month without a day is debated in legal doctrine, the Supreme Court holds that such a specification is sufficient for the validity of the undertaking. However, another view argues that since the legislator explicitly stipulated the agreement on a specific date, the eviction undertaking would be invalid if the eviction date is specified only in the month.

While the legislator has not explicitly stated who should write the eviction date, in practice, the landlord's practice of writing the eviction date often leads to abuse of rights and violations of the principle of good faith.

Whether the eviction date is written by the tenant or the landlord does not affect the validity of the eviction undertaking; however, especially nowadays, this situation leads to the landlord arbitrarily filling in the eviction undertaking afterwards, thus using it as a tool of pressure against the tenant. In cases where this situation is evident from the case file, the eviction request should be rejected in accordance with the prohibition against abuse of rights.

• The eviction undertaking must be drawn up after the leased property has been handed over.

According to Article 352/1 of the Turkish Code of Obligations, an undertaking to vacate the premises is valid only after the leased property has been delivered. An undertaking to vacate given before the lease agreement is invalid, as is an undertaking to vacate included as a clause in the lease agreement.

It should be noted that even if a lease agreement has been made, an eviction undertaking will be invalid for a property that has not yet been physically taken over. This is because validity is explicitly contingent upon delivery. In everyday life, physical control generally takes the form of handing over the keys.

             CONTENT OF THE EVICTION AGREEMENT

• The eviction agreement should primarily include the tenant's name, address, and contact information.
• The full address of the rented property and the vacating date must be specified.
• Clauses specifying the method and conditions of eviction can be added to the eviction undertaking.

SAMPLE EVICTION AGREEMENT

Intern Student Selin MUTLUTÜRK